Court denies water quality suit against Vermont Yankee

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BRATTLEBORO -- Stating Vermont had numerous opportunities to contest the completeness of the relicensing application for Vermont Yankee nuclear power plant in Vernon, on Tuesday the D.C. Circuit Court of Appeals shot down the Vermont Department of Public Service’s challenge to the issuance of the new license in March 2011.

DPS and the New England Coalition had contended that the relicensing application was incomplete because it did not include a water quality certificate from the state. They asked the court to order the Nuclear Regulatory Commission to reconsider its decision to issue the new license.

The court ruled today that DPS and NEC had failed to exhaust their administrative remedies prior to the license issuance and therefore, the court denied their petitions for review.

In its decision, the Court of Appeals wrote after an Atomic Safety and Licensing Board ruled on the application in 2008, "the petitioners sat silent for two and one-half years thereafter, raising their (water quality certificate) objection only after the Commission issued the license renewal in March 2011."

"The court found that the state had multiple opportunities to earlier raise its argument about whether the plant lacked a valid 401 Water Quality Certification, but failed to do so," said Neil Sheehan, spokesman for the NRC.

Because the state had failed to challenge the renewal application in a timely manner and as required by federal regulations, Vermont waived the right to judicial review, stated the court.

"The NRC is satisfied with the ruling," said Sheehan. "The agency’s review of the Vermont Yankee license renewal application began in early 2006 and lasted more than four years, culminating with an approval on March 21, 2011. In between, the application was the subject of thorough safety and environmental evaluations, an Atomic Safety and Licensing Board hearing and Commission reviews. As the court has ruled, the time for the Water Quality Certification issue to come to the fore was during this extensive review period, but that did not occur."

Administrative remedies included filing a new contention in front of the ASLB, petitioning the NRC for review, submitting a comment to the NRC commissioners for review following the issuance of the plant’s environmental impact statement, and filing a comment following the NRC’s issuance of its partial initial decision relative to the relicensing application.

"In so doing," wrote the court, "the petitioners undermined the functions exhaustion serves: ‘Giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies’ expertise, and compiling a record adequate for judicial review.’"

Even though the court can excuse exhaustion if the cause outweighs the governments interests in the efficiency of its administrative autonomy, wrote the court, "We find no exculpatory circumstances here."

John Beling, the director for public advocacy at the Vermont Department of Public Service, said the department is disappointed that the court declined to address the substantive water quality issues Vermont raised.

"Instead, they focused on procedural issues," he said. "We feel the court should have accepted the petition and looked at the fact that Vermont Yankee’s water quality certificate, which was issued in 1970, is not adequate for another 20 years."

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Beling said it’s uncertain at this time whether Vermont will appeal the decision to the U.S. Supreme Court.

However, he said, DPS will continue to focus its attention on the Public Service Board’s hearings on whether Yankee should receive a certificate of public good for continued operation from the state.

Christopher Kilian, vice president and the director of the Conservation Law Foundation, which represented the New England Coalition, said he was also disappointed by the ruling.

"Primarily because what seems to be lost in the shuffle in this opinion is that Entergy (which owns and operates the plant) has failed to obtain a water quality certificate from the state," he said. "Unfortunately, the court seized on what it believed to be procedural problems and didn’t reach the substantive Clean Water Act violation that is present and ongoing at Vermont Yankee."

Kilian said CLF and NEC are currently reviewing what their options are in light of the court’s decision.

"The important thing is the protection of Vermont’s rights under the Clean Water Act and protection of the environment, not going through some sort of Byzantine, ministerial process of checking boxes in a federal bureaucracy," he said.

Kilian said he believes because Yankee doesn’t have a clean water certificate to go along with its renewed license, it is in violation of the Clean Water Act.

"The CWA certificate is required from the state in order to lawfully operate under the act," he said. "Entergy doesn’t have that certificate and from our perspective is operating in violation of the law."

Catherine Gjessing, associate general counsel for the Vermont Agency of Natural Resources, said even though Yankee doesn’t have its water certificate, it’s unclear whether the state can levy any sanctions against the power plant.

"The court ruled that Vermont waived the certificate by not specifically pursuing its administrative remedies," said Gjessing. "I would suspect that would have an impact on the state’s ability to enforce that part of the water quality act, but it’s not something this agency has had the opportunity to discuss internally."

ANR is still in the process of determining whether Yankee should receive a permit to discharge non-radioactive cooling water -- at up to 100 degrees -- into the Connecticut River. That process has been going on since 2006 and is not expected to be resolved anytime too soon, but it could affect Yankee’s continued operation, especially if ANR determines that the plant can no longer discharge the water into the river.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160.


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